COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68575 CLOVER ELLIOTT, ADMINISTRATRIX : OF THE ESTATE OF HOWARD HAWKINS : : Plaintiff-appellant : JOURNAL ENTRY : AND - v - : OPINION : MINNIE NASH, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 28, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas, Probate Court Division, Case No. 262077. JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Tossie Wiley, Jr., Esq. William J. Lavin, Esq. 1370 Ontario Street 1370 Ontario Street Suite 1328 Suite 800 Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- HARPER, P.J.: Clover Elliott, Administratrix, plaintiff-appellant, appeals from the Cuyahoga County Court of Common Pleas, Probate Court Division, which granted judgment in favor of Minnie Nash, defendant-appellee. Appellant, sister of decedent, brought an action in probate court seeking a declaratory judgement to set aside a quit-claim deed and a Veterans Administration Change of Beneficiary Form ("VA Change of Beneficiary Form"). We find appellant's assignment of error to lack merit, and therefore we affirm. I. The following facts were adduced at the hearing. Decedent, Howard Hawkins, passed away on July 28, 1993. Prior to the time of his death, decedent owned real estate property at 3652 Roselawn Road ("the Roselawn property"), Woodmere, Ohio estimated at $100,000.00, and real estate property at 3219 East 121 Street in Cleveland, Ohio. Minnie Nash, defendant-appellee, testified that she and Ples Nash (her husband and co-defendant-appellee), decedent, and his wife (Ethel Hawkins), were members of the same Jehovah's Witness Congregation and became friends. After decedent was diagnosed in 1981 with Parkinson's Disease, appellees began to assist both decedent and his wife, as Mrs. Hawkins suffered a stroke and needed assistance to care for her husband. Prior to Mrs. Hawkins death, appellees promised her that they would take care of decedent. After the death of Mrs. Hawkins in 1991, appellees continued to -3- assist decedent. At this time, decedent resided at his home at 3912 East 121 Street in Cleveland. Appellee Minnie testified that in 1992, she and her husband spoke with decedent about possible living and care options. They discussed one plan whereby they would all live together at the Roselawn property "as a family." She recounted that she, her husband, and decedent entered into an oral agreement wherein the appellees would live together at the Roselawn property, appellees would care for decedent, and if possible, his brother, Ulysses, and decedent would transfer his interest in the Roselawn property to appellees. She recalled discussions she and her husband had with decedent concerning the condition of the Roselawn property, and the need for repairs. Appellee Minnie informed decedent that she and her husband would take care of the repairs at the Roselawn property and make the necessary modifications to accommodate decedent's medical needs, so decedent could move to the Roselawn property with them. On March 13, 1992, she recounted that decedent executed a power of attorney naming her as his attorney-in-fact, for the purpose of handling his real estate affairs, in addition to other matters such as paying bills. She explained decedent wanted to grant her power of attorney because he wanted her to handle his affairs. She indicated decedent's mental state was excellent when he signed the power of attorney. On March 26, 1992, appellee Minnie confirmed that pursuant to decedent's instructions she attempted to transfer decedent's late wife's interest in the -4- Roselawn property to her and decedent by means of Joint Survivorship. She explained that he provided the wrong information to the county recorder's office. Pursuant to decedent's instructions, she contacted Catherine Bryant to draft a quit-claim deed to transfer decedent's property to appellee Minnie. She testified decedent met with Catherine Bryant, who was also a Notary Public, at his home at East 121 Street to discuss transferring the property, by means of a quit- claim deed and the purpose of the quit-claim deed; Ms. Bryant prepared the deed at his home. Appellee Minnie testified that she, decedent, appellee Ples, and Bryant discussed the quit-claim deed. On or about April 4, 1992, appellee Minnie witnessed decedent execute a quit-claim deed transferring his interest in his property at 3652 Roselawn Road to her, and on April 5, 1992, decedent executed a VA Change of Beneficiary Form naming her husband as his primary beneficiary in his Veteran's Administration insurance policy. She testified that she witnessed decedent sign the quit- claim deed and VA Change of Beneficiary Form. After the quit-claim deed was executed, she followed decedent's instructions regarding payment of property expenses after it was transferred to her. She paid taxes for the Roselawn property out of decedent's estate, according to his instructions, and she paid all the utilities for the property. Appellee Minnie explained that while she did not pay money for the property transferred to her, she and her husband provided numerous services to decedent and his wife, before her death, and to decedent until -5- he died. She recounted that she arranged for transportation for medical examinations, purchased medical supplies, paid decedent's bills, and administered medication. Appellee Minnie also explained that she and decedent never discussed appellees paying rent, and appellees never paid rent for living at the Roselawn property. She explained that decedent was getting $350 from the previous person who lived in the house. In addition, she testified that decedent never put a stipulation on appellees to pay $350.00, because he knew the repairs needed for the home were extensive. Morever, she explained that appellees and decedent agreed and understood that appellees could not contribute to the rent all the time. Next, appellee Minnie described her encounters with Leroy Farmer and Mark Smith, both Elders from the Jehovah's Witness Congregation. A meeting was called by the Elders for the purpose of discussing with appellees their handling of decedent's affairs. She recounted that she did not feel comfortable speaking about decedent's affairs to the Elders, especially, Elder Mark Farmer. He had been responsible for having decedent deleted as an Elder in the congregation and he failed to attend Mrs. Hawkins' funeral. During this meeting with the Elders, she recounted that decedent only spoke once during the two meetings. Moreover, she stated she chose not to respond to statements regarding the property being transferred to Steven Terry, decedent's nephew. She indicated that after each meeting with the Elders, she and decedent discussed the purpose of the meetings and Elder Farmer's participation. -6- According to appellee Minnie, up until the time of his death, decedent was lucid and alert; he could write his name until the time of his death. She explained that decedent did not get along with his sister, Clover Elliott, or her son, Stephen Terry. Finally, she indicated that she and her husband had put approximately $20,000 in renovation costs into the Roselawn property and they had started making inquiries about having handicapped accommodations installed into the property in anticipation of decedent moving into the Roselawn property with them. Upon the death of decedent, she stopped taking care of Ulysses when she received written instructions from counsel representing appellants. With respect to the VA Change of Beneficiary Form, she testified that she filled out the form pursuant to decedent's instructions, and decedent signed the form on April 5, 1992. Appellee Minnie testified that Mr. Pettway witnessed decedent sign the form. She explained decedent and appellee Ples discussed the insurance policy. She testified decedent wanted his brother, Ulysses, to have the policy. However, since Ulysses was in a nursing home, decedent believed that the nursing home would receive the insurance policy benefits rather than Ulysses. She recounted that Stephen Terry, decedent's nephew, never called decedent, nor did he visit decedent at decedent's home. Mr. Leroy Farmer testified as a witness for appellant. He declined to discuss the basis for decedent being deleted from the Body of Elders at the Jehovah's Congregation on the basis of -7- "ecclesiastical privilege." Mr. Farmer recounted that decedent had contacted the Body of Elders requesting assistance concerning his real property. Mr. Farmer testified that he and decedent met to discuss decedent's concerns. On March 23, 1992, Mr. Farmer met with appellees, decedent, and Elder Mark to discuss decedent's concerns. At a third meeting, Mr. Farmer, on behalf of the Body of Elders, discussed with decedent, appellees, and Mr. Mark Smith "recommendations" concerning the disposition of decedent's property. Mr. Farmer indicated decedent appeared to be mentally coherent. According to Mr. Farmer, decedent did not discuss his life insurance policies with him or Mr. Mark Smith. He recounted that decedent never declared that he had not deeded the Roselawn property to Minnie Nash; and decedent indicated that he wanted the property to go to his nephew. Mr. Farmer acknowledged decedent was competent to dispose of his property. Appellee Ples testified that during the fall of 1991, after Mrs. Hawkins death, he moved into decedent's home at 3912 East E. 121 Street for ten months in order to provide for decedent's care. He corroborated his wife's testimony concerning the tasks they performed for decedent. He recounted that he cleaned, bathed, clothed, fed, and inserted catheters for the decedent. He estimated that they made approxiamately $13,000.00 to $15,000.00 in repairs to the Roselawn property. He testified that he was present when decedent received a call from the Veterans Administration to verify the Change of Beneficiary Form. Also he recounted his surprise when he was -8- informed that decedent made him the beneficiary of his life insurance policy. Moreover, he indicated he never saw appellant's nephew visit decedent. He stated decedent did not speak during the two meetings with the Elders and decedent did not instruct appellee Minnie to transfer the Roselawn property. Appellant's expert, Dr. Robert Ruff, was deposed and his videotape of a deposition was admitted as evidence. Dr. Ruff opined that based upon a "reasonable medical certainty", decedent could not sign his name after April 13, 1992. However, Dr. Ruff acknowledged that he did not have any medical records to support his conclusion that decedent could not sign his name. Dr. Ruff testified that he did not examine decedent when he was last admitted to the hospital. Finally, Dr. Ruff confirmed that he did not have an evaluation of decedent's handwriting ability prior to July 1990. Clover Elliott, plaintiff-appellant testified. She admitted that she had not seen her brother, decedent, from 1981-1982 until his wife's death in September 1991 and that she had only attempted to see him seven or eight times from the death of Edith Hawkins until decedent's death in July 1993. She testified that she was a "loving sister." However, she admitted she and decedent had been involved in previous litigation regarding a trust estate which included the Roselawn property. Ottis Pettway testified for appellees and stated that on April 5, 1992, he witnessed decedent execute the VA Change of Beneficiary Form. He stated decedent appeared competent and he -9- knew what he was signing. Finally, he testified he did not remember seeing appellant or her son, Steven Terry, at decedent's home when he was present. Vickie Williard, Forensic Document Examiner, also testified for appellees. She explained she compared decedent's signatures on various documents, including a driver's license, a temporary driver's permit, a 1984 lease, and a 1991 land installment contract, to the quit-claim deed and the VA Change of Beneficiary Form. Comparing these documents, she concluded the signature on the quit-claim deed was decedent's signature, and it was "highly probable" that it was decedent's signature on the VA Change of Beneficiary Form. Ms. Williard was unable to be more conclusive about decedent's signature on the VA Change of Beneficiary Form, since she did not have the original VA Change Form to examine. Finally, she testified that she had experience in examining signatures of Parkinson's Disease patients and she took into account the effects of Parkinson's Disease in reaching her conclusion. Attorney Ann Porath testified that she had represented decedent from 1986 until March 1992. During her home visit with decedent and with appellees present, decedent expressed to her his concerns about his brother, including trying to provide a monthly income for Ulysses by a land contract. She explained that she did not advise decedent about the land contract and she did not prepare the land contract for decedent. -10- She testified that she, decedent, and appellees discussed decedent's option for living and care arrangements, as well as his brother Ulysses' care, on three to four occasions, from January 1992 through March 1992. In her presence, decedent rejected the possibility of living in a nursing home or living in Tennessee; decedent was informed about the ramifications of the Medicaid rules regarding home ownership of property and the need to "spend down" assets. Decedent discussed with her the plan of appellees and decedent living together "as a family" at the Roselawn property, and appellees taking care of decedent. She also discussed with decedent the possibility of transferring the Roselawn property to appellees by various types of deed transfers. According to Ms. Porath, decedent clearly understood his options and asked questions concerning the options. Terry Muir, the attorney who prepared decedent's power of attorney for decedent testified. He explained that he prepared the documents according to decedent's instructions in March 1992, and decedent clearly understood what he was doing. He testified decedent indicated to him that appellee Minnie was to have the authority regarding his affairs, including his real estate. Moreover, decedent signed the document in his presence and in the presence of witnesses. Finally, he indicated that he recorded the power of attorney pursuant to decedent's instruction. Annette Robitson, a licensed pratical nurse, testified that she had been decedent's in-home nursing care attendant since 1988. She recalled that decedent's mental condition in 1992 and 1993 was -11- "oriented." Decedent told her that he had transferred the Roselawn property to appellees, and that he intended to move with appellees to the Roselawn property. She testified that she witnessed decedent sign his name to her various time sheets in 1993 and that there was only one time that she could remember him not signing his name; this was when he was admitted to the Veteran's Administration Hospital. Mark Smith testified as appellant's rebuttal witness. He stated that he had been deleted as an Elder of the Jehovah's Witness Congregation. He testified decedent fully participated in the conversations between the Elders and appellees in 1993. He explained that he assumed appellees were required to pay rent because "they were living at the Roselawn property and everyone else who had lived there had paid rent." After the hearing concluded, appellant requested Findings of Fact and Conclusions of Law. On January 30, 1995, a verdict was returned in favor of appellees. Appellant timely appeals. II. In appellant's sole assignment of error, appellant charges that the trial court committed reversible error in granting judgment to the appellees as the appellees failed to meet their burden of proof in showing the fairness in their transaction with the decedent due to their fiduciary relationship with him. Appellant specifically argues the appellees admitted they had a fiduciary relationship with the decedent and failed to abide by the desires and directions of the decedent in the disposal of his real -12- estate and life insurance proceeds, thus failing to prove the fairness of the appellees' transactions with the decedent. Appellant asserts the quit-claim deed and the VA Beneficiary Change Form should be set aside, because appellees exerted undue influence over decedent and decedent's signature was not authentic. We disagree. Reversible error substantially affects appellant's rights and legal obligations which, if uncorrected, would result in a miscarriage of justice and which justifies reversing a judgment in the court below even if the error was not objected to in the lower court. In weighing evidence, an appellate court is required to give great deference to the judgment of the trial court. Thus, judgments supported by some competent, credible evidence going to all essential elements of the case will not be reversed by reviewing court as being against the manifest weight of evidence. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Where there exists competent and credible evidence supporting findings and conclusion of the trial court, deference to such findings must be given by the reviewing court. Meyers v. Garson (1993), 66 Ohio St.3d 60; Giurbano v. Giurbino (Jul. 22, 1993), Cuy. App. No. 62996, unreported. A deed executed in the correct form is presumed to be valid and will not be set aide except upon clear and convincing evidence. Henkle v. Henkle (1991), 75 Ohio App.3d 732. Therefore, a party seeking recission and cancellation of a deed because of undue -13- influence, bears the burden of proof by clear and convincing evidence. Weaver v. Crommes (1959), 109 Ohio App. 470, 474-475; Flynn v. McHugh (1955) 98 Ohio App. 398. "Whether the ground asserted for setting aside a formal written instrument such as a deed be lack of capacity, fraud or undue influence the plaintiff cannot succeed unless he establishes either lack of capacity, fraud, or undue influence by clear and convincing evidence." Laymon v. Bennett (1944), 75 Ohio App. 233. The existence of a confidential relationship raises an inference that the defendant took undue advantage of the grantor. The court in McAdams v. McAdams (1909), 80 Ohio St. 232, discussed the presumption of fraud in confidential relationships and the burden of proof allocated to the party alleging fraud. The court stated: The law applicable to such a condition of facts should be perfectly clear. Whatever presumption of fraud arising out of confidential relations may be raised, it necessarily is rebutted when it is shown that the instrument is in exact accord with the grantor's declarations, made both before and after its execution; *** But when it also clearly appears in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done, and that he could read and had ample opportunity before, at, and after, signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted, and the burden rests upon the grantor to show by clear and convincing proof that the deed is fraudulent. Id. -14- The "burden of going forward with evidence which will rebut the inference is cast upon the defendant and if that inference is counter-balanced, the original obligation still remains with the plaintiff to show by clear and convincing evidence that the defendant exercised undue influence over the grantor in procuring the execution of the deed to the defendant." Vesey v. Giles (1952), 108 N.E.2d 300. The court in Henkle discussed undue influence. The Court stated: Ohio Courts have generally held an individual's influence is undue when it restrains a testator from disposing of property in accordance with the testator's own wishes and judgments and substitutes the wishes or judgment of another. The undue influence must so overpower and subjugate the mind of the testator as to destroy the testator's free agency and make the testator express another's will rather than his or her own. (Citations omitted). Henkle, supra, at 736. Whether the ground for setting aside a written formal instrument such as a deed be lack of capacity, fraud, or undue influence, the plaintiff cannot succeed unless he establishes either lack of capacity, fraud, or undue influence by clear and convincing evidence. Laymon, supra. Additionally, the presumption of validity which flows from a deed which appears upon its face to have been executed in due form may be overcome only by clear and convincing proof, and he who challenges it must sustain the burden of such proof. Weaver, supra. With the substantive legal standard set forth, we turn to appellant's argument that the quit-claim deed and the VA Change of -15- Beneficiary Form should be set aside because appellees exerted undue influence over decedent as a result of appellees' fiduciary relationship with decedent. The facts in the case sub judice clearly establish that a fiduciary relationship existed between appellees and decedent, thus the presumption of undue influence was created by law. Here, the power of attorney which decedent gave to appellee, Minnie Nash. created a fiduciary relationship between her and decedent. Appellee Minnie testified that she acted pursuant to the power of attorney, to transfer and manage all of decedent's personal affairs; thus she enjoyed a superior relationship with decedent by virtue of the services she provided to decedent. With respect to appellee Ples, he testified that he performed many daily services for decedent as a care-giver. Similarly, a fiduciary relationship existed between appellee Ples and decedent. Appellees rebutted the presumption of undue influence over decedent by competent and credible evidence showing the quit-claim deed and the VA Change of Beneficiary Form were executed pursuant to decedent's declarations and wishes. Appellant offered no testimony to show that appellees substituted their will over decedent, or that their influence overpowered the mind of decedent. Appellees' witnesses testified to decedent's competency and state of mind concerning the quit-claim deed and VA Change of Beneficiary Form. However, appellant failed to present evidence pertinent to decedent's state of mind when he executed the quit-claim deed and the VA Change of Beneficiary Form, or prior to decedent executing -16- the quit-claim deed and the VA Change of Beneficiary Form. The testimony by appellant's witnesses concerning decedent's competency and state of mind in 1993, was immaterial to the issue of decedent's competency and state of mind when he signed the quit- claim deed and the VA Change of Beneficiary Form. Thus, appellant failed to prove with clear and convincing evidence that appellees exerted undue influence over decedent when he executed the documents. Additionally, appellees' witnesses testified to decedent signing the quit-claim deed and the VA Change of Beneficary Form. Appellant failed to demonstrate with clear and convincing evidence that decedent lacked the capacity to sign the documents, or that appellees fraudulently executed decedent's signature or that decedent's signature was not authentic. Appellant failed to show by clear and convincing evidence that fraud, incapacity, failure of consideration, or undue influence induced decedent to transfer his property to appellees. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. -17- It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court, Probate Court Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., AND DIANE KARPINSKI, J., CONCUR PRESIDING JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .